Why the Responsibility to Protect (R2P) Doctrine Is Incompatible with the Principles of National Sovereignty and Domestic Jurisdiction Found in International Law

“Why the Responsibility to Protect (R2P) Doctrine is Incompatible with the Legal Principles of National Sovereignty and Domestic Jurisdiction” by Kapok Tree Diplomacy

(C) Kapok Tree Diplomacy. April 2011. All rights reserved.  PREVIEW

Section One – Origins and Core Principles of R2P

Report of the International Commission on Intervention and State Sovereignty (ICISS) (2001)

State sovereignty has been defined as, “the rightful entitlement to exclusive, unqualified, and supreme rule within a delimited territory” (Smith, Baylis & Owens 25). But when, where and how may that legitimate and authoritative ‘rightful entitlement’ be challenged? UNSG Annan noted in a 1999 Press Release (SG/SM/7136, GA 9596), “State sovereignty, in its most basic sense, is being redefined by the forces of globalization and international cooperation” (qtd. in Dunoff, Ratner & Wippman 954). It is against this backdrop of rapidly changing international legal perspectives on state sovereignty that the ICISS makes its case.

Core Principles.  The ICISS lays out a set of basic principles and criteria that justify intervention based on the idea that “sovereign states have a responsibility to protect their own citizens from avoidable catastrophe” (ICISS viii). Under the ICISS Basic Principles, State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself;” thus, “Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect” (ICISS XI). So then the question becomes what constitutes “serious harm,” and just who exactly is responsible for intervening, and under what conditions can they do so?

Table of Contents

I.    Origins and Core Principles of R2P

A.  Report of the International Commission on Intervention and State Sovereignty (ICISS) (2001)

B.  Core Principles

1.  Threshhold for Military Intervention

2.  United Nations and INGO Support for R2P

II.   Arguments in Favor of R2P and Challenges to Implementation

A.   Sovereignty and Intervention According to the UN Charter

B.   Pro R2P Argument #1 – Protecting human rights transcends state sovereignty

C.   Pro R2P Argument #2 – Cost of inaction is greater than the cost of action

D.   Pro R2P Argument #3 – No threat to territorial integrity or political independence

E.   Pro R2P Argument #4 – Intervention will help deter future atrocities

F.   Pro R2P Argument #5 – Common interest’ trumps national interests and sovereignty

G.   Challenges to Implementation

III.  Arguments against the Legality and Implementation of R2P

A.  Con R2P Argument #1 – Concept of intervention not widely accepted as a norm

B.  Con R2P Argument #2 – States have the option not the obligation to intervene

C.  Con R2P Argument #3 – Removes military decisions and control from national governments

D.  Con R2P Argument #4 – R2P is not an effective deterrent

E.  Con R2P Argument #5 – UNSC & UNGA should not have sole responsibility to act

F.  Con R2P Argument #6 – The “precautionary principles” are subjective and impractical

G.  Con R2P Argument #7 – Legal authorization or obligation from UN Charter does not exist

H.  Con R2P Argument #8 – Current events undermine R2P argument and effectiveness

IV.  Conclusion

Full essay contains 3,055 words; 11 pages double-spaced; 12 references.

The posts, views and opinions expressed in this paper and on this post are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

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